ÆäÀÌÁö À̹ÌÁö
PDF
ePub

upon their verdict, in sending, by their request, to the jury room, the official stenographer by whom the evidence had been taken on the defendant's trial, and permitting him, while there alone with the jury, to read from his stenographic notes to them, with his explanations of same, such parts of the evidence so taken by him as they desired to hear. In expressing our condemnation of this action of the trial court, we, in part, said: "In the face of so grave an error as that committed by the trial court in this case, the appellate court should not stop to weigh probabilities, or try to discover from the record whether it was prejudicial to the accused, but must assume that the error amounted to such an invasion of appellant's constitutional rights as to deprive him of a fair and impartial trial." The opinion cites the following civil cases, in which it was held that such an error as that committed by the court in Kokas v. Com. supra, compelled the setting aside of the verdict: Luttrell v. Maysville & L. R. Co. 18 B. Mon. 291; Louisville, C. & L. R. Co. v. Cavens, 9 Bush, 559, 15 Am. Neg. Cas. 154; Louisville, H. & St. L. R. Co. v. Morgan, 110 Ky. 740, 62 S. W. 736.

In Bentler v. Com. 143 Ky. 503, 136 S. W. 896, the trial court committed precisely the same error complained of in the instant case; but, as much of the opinion had previously been devoted to the consideration of another error that also compelled the reversal of the judgment, the constitutional objections to the action of the trial court constituting the error in question were not discussed, it being deemed sufficient to show, as was done, that the error was one that also resulted from the trial court's violation of the provisions of § 249, Criminal Code. However, in considering it, we said: "The trial judge likewise erred in entering the room where the jury were deliberating and, in the absence of accused and his counsel, answering questions there propounded by the jury, and giving them advice.

with respect to the law of the case or the verdict to be returned by them. Not only was this action of the court a violation of the provision of § 249 of the Criminal Code, which requires, when the jury desires to be informed upon a point of law, that they should be brought into court and the information given by the court in the presence of, or after notice to, the accused and his counsel, but it was calculated to put the court in a position to be misjudged, and his motive questioned. 12 Cyc. p. 681; Goode v. Campbell, 14 Bush, 75."

We have been referred to no case in which it appears to have been held that a meeting and conference between court and jury, in the privacy of the latter's room, and in the absence of the defendant and his counsel, did not constitute reversible error. It is not intimated by counsel for appellant that the trial judge, whose conduct in meeting and conferring with the jury in their room is here complained of, was actuated by any improper motive, nor is there anything appearing in the record that tends to impute to him such a motive; but the fact that in taking the action referred to his purpose was to advise and assist the jury in the performance of a duty with which they were charged did not clothe him with authority to deprive the appellant of a right guaranteed him, both by the Constitution and statutes of the state; and, as the record fails to affirmatively show that the appellant was not thereby prejudiced in his substantial rights, we are constrained to hold that the action of the trial judge complained of must be declared reversible er

ror.

The appellant's complaint of error in the admission of incompetent evidence, contained in his second contention, seems to be devoid of merit. In order to understand this contention it should be stated that the subject of the alleged forgery for which the appellant was indicted was a written receipt, executed to him by

(200 Ky. 509, 255 S. W. 125.)

one W. M. Hamilton, which reads as follows:

"March 16th, 1922. "Received of C. F. Puckett seventy dollars, payment on note.

"W. M. Hamilton."

According to the testimony of Hamilton, the amount paid him on the note by the appellant was only $7, and the receipt therefor, as written by appellant and signed by him (Hamilton) at the time of the payment, was for the $7, but that when next seen by him the word "seven" originally appearing therein had been changed to "seventy," by adding to the paper, in writing, the letters "ty" after and at the end of the word "seven." It was further testified by Hamilton that the changing of the word "seven" into "seventy" was a forgery, and this is the forgery for which the appellant was indicted.

The admitted evidence complained of as incompetent were certain photographs made of the receipt in question by one Earp, who, upon being introduced as a witness, testified that the photographs were made by him, also as to their accuracy, and that they showed an enlargement of the receipt. The appellant's counsel, without stating the reasons therefor, objected to the exhibition of the photographs to the jury. The objection was overruled, and the photographs introduced, and to this ruling appellant excepted. We see no reason for holding the photographs incompetent as evidence. It seems to be a well-recognized rule of the law of evidence that, where the original writing, the genuineness of

which is questioned, is produced, a photographic enlargement through a magnifying lens may be employed. Wigmore, Ev. § 797, Evidence-forsubsec. 4, p. 906; 22 gery-enlarged photographs. C. J. § 1121, p. 918. In First Nat. Bank v. Wisdom, 111 Ky. 135, 63 S. W. 461, wherein the genuineness of the signature to a note was involved, it was held that photographs of the signature in question, and others of the same person, were properly admitted as evidence; the court in so holding saying: "But they were only a more enduring form of exhibiting the signatures to the jury as under a magnifying glass. Such evidence has often been held competent."

The record presents no ground for the appellant's complaint of error on the part of the trial court in excluding competent evidence offered in his behalf, as it fails to show the exclusion of any such evidence.

The appellant's final contention that the verdict of "Not guilty" should have been directed in his behalf upon the evidence of the commonwealth, and that the verdict returned is flagrantly against the evidence, is, in our opinion, also without merit. As the case will be retried, we will not discuss in detail the evidence, or express any opinion as to its weight or effect, further than to say that, while unusually conflicting, it was sufficient to require the submission of the case to the jury.

For the reasons indicated, the judgment is reversed for a new trial, and such further proceedings as may not be inconsistent with the opinion.

ANNOTATION.

Communications between jurors and others as ground for new trial or reversal

I. In general, 104.

in criminal case.

II. Communications between jurors and outsiders, 104.

III. Communications between judge and jurors, 104.

IV. Communications between jurors and officials or attendants, 105.

V. Communications with juror not serving in the case, 106. [No later decisions herein.]

VI. Communications between jurors and witnesses, 106.

VII. Communications between jurors and counsel, 107.

I. In general.

This annotation supplements the earlier annotation in 22 A.L.R. 254.

There appears to have been little, if any, general discussion in the recent cases, except upon the lines already set forth in the previous annotation.

As to conduct of court in discharging a jury during a trial, in consequence of a juryman's reporting a conversation between himself and an outsider where there was a question whether the defendant had consented to the discharge of the jury, as bearing on the matter of former jeopardy, see State v. Thompson (1921) 58 Utah, 291, A.L.R. 199 Pac. 161.

II. Communications between jurors and

outsiders.

(Supplementing annotation in 22 A.L.R. 255.)

The rule that a verdict will not be disturbed because of a conversation between a juror and a stranger, where it was not prompted by a party and it does not appear that any injustice was done to accused, or, at least, if it appears that he was not prejudiced, has been further supported in the following cases:

In People v. Golsh (1923) 63 Cal. App. 609, 219 Pac. 456 (murder), a jury woman's talk with the father of the deceased in an excited manner, during which she used violent gesticulations, was held to be not sufficient to raise the presumption that the juror was improperly influenced, in the absence of any showing that the talk related to the case on trial, so not to call for a reversal, although it was a grave impropriety.

[blocks in formation]
[blocks in formation]

And in Stamp v. Com. (1923) 200 Ky. 133, 253 S. W. 242 (manslaughter), the act of the wife of the accused in going up to the jury box and beginning to make a statement, whereupon she was stopped, the jurors not knowing who she was or what she was going to say, was held to be not ground for a reversal.

But in Toussaint v. State (1922) 92 Tex. Crim. Rep. 374, 244 S. W. 514 (murder), a new trial was granted by reason of conversations between jurymen and women prisoners, and also a conversation between one of the jurors and his wife, where the state failed to rebut the presumption (existing in that state) that such conversations were injurious to the accused. The court said: "If a juror during his retirement desires to hold an innocent conversation with one outside, it is no insurmountable hardship to require that he obtain the permission of the court and observe the safeguards that are prescribed by the statute. If he chooses not to do so, and holds the conversation against the mandate of the statute, then the rule which requires that the person with whom he talked be presented to rebut the presumption of injury is neither so onerous nor unjust as to justify its disregard."

III. Communications between judge and

jurors.

(Supplementing annotation in 22 A.L.A. 261.)

In a few recent cases the fact that the trial judge gave further instructions in the jury room has been held to be reversible error.

Thus, in People v. Beck (1922) 305 Ill. 593, 137 N. E. 454 (unlawfully possessing intoxicating liquor), where the trial judge read to the jury some additional instructions, at its request, having apparently gone into the jury room to do so, the judgment was re

versed because the defendant was not present and had not waived his right to be present.

And in the reported case (PUCKETT V. COM. ante, 96) (forgery), a new trial was granted on account of the trial judge entering the jury room of his own accord, about an hour after the jury retired, and giving them directions as to their duties respecting the finding of a verdict, in the absence. of the accused and his counsel; the court answered the contention that such conduct was not prejudicial to the rights of the accused, by holding that its probable effect was to hasten the jury's deliberations. But see Dunbar v. Com. (Ky.) infra.

Likewise, in Osborne v. State (1922) 93 Tex. Crim. Rep. 54, 245 S. W. 928 (theft), a reversal was granted in consequence of a trial judge entering the jury room, in response to the jury's request for further instruction, and making a verbal statement to the jury, as to the nature of which statement several different versions were given, the court holding: "In no event should the trial judge enter the room in which the jury are engaged in their deliberations, for the purpose of discussing the charge or any phase of the case, or permitting any of the members of the jury to do so. To the jury, not only the language of the judge trying the case, but his manner, is of peculiar weight, and they may place upon it interpretations not intended."

But in Dunbar v. Com. (1921) 192 Ky. 263, 232 S. W. 655 (stealing), the circumstance of a jury calling in the trial judge and asking his advice as to finding another guilty besides the accused, and the judge advising the jurors to see the prosecuting attorney about starting proceedings against the other, was held to be an irregularity which did not affect the verdict.

And a motion for a new trial in consequence of a trial judge going into the jury room, at the request of a juror for information as to penalties that might be imposed on the accused has been held to have been properly overruled where no objection was made until after the verdict was ren

dered. Woodward v. State (1922) 130 Miss. 611, 94 So. 717 (manslaughter).

And in Lemons v. State (1922) 155 Ark. 59, 244 S. W. 1 (liquor law violation), there was held to be no error by reason of a juror having come into the court room and handed the judge a paper on which a question was written, and the judge having handed back to the juror the same paper, after writing on it a reply to the question, where defendant's counsel was present and did not make any objection at the time.

And in State v. Drakeford (1922) 120 S. C. 400, 113 S. E. 307 (unlawfully keeping in possession and storing intoxicating liquor), a remark by a judge to a foreman, upon the latter reporting a disagreement, "Oh, but you must agree; we couldn't consider a mistrial in this case," was held not prejudicial error in view of the circumstances, the judge having smiled when he said this, and having subsequently stated that no juror was expected to surrender his conscientious convictions.

In Phares v. State (1923) 158 Ark. 156, 249 S. W. 551 (voluntary manslaughter), there was no reversible error where, after the jury had twice reported a disagreement, a juror retired with the judge and the prosecuting attorney and told the question which was hanging the jury, whereupon the judge gave the jury instructions upon that question, there having been no abuse of the judge's discretion.

There was no error in a written request by a jury asking a judge. whether a verdict of guilty in the first degree, with recommendation of extreme mercy, would be permissible, and the judge's reply that if the jury insisted on an answer he would have to send for the defendant. Com. v. Myma (1924) 278 Pa. 505. 123 Atl. 486 (murder).

IV. Communications between jurors and officials or attendants. (Supplementing annotation in 22 A.L.R. 264.)

In Taylor v. State (1922) 18 Ala. App. 466, 93 So. 78 (violation of prohibition law), a new trial was granted

[merged small][ocr errors][merged small]
[ocr errors]

And in Mills v. State (1924) Tex. Crim. Rep., 260 S. W. 578 (murder), there was held to have been reversible error by reason of an officer's conduct which was calculated to prejudice the rights of the accused, where the officer had told the jury that in case of disagreement the judge would hold them for another week and send them to another county, and where he had also told them of an instance of a juror having been whipped in the jury room for not agreeing with the others.

But a motion for a new trial upon the ground that a bailiff spent the night with a jury, and took part in its discussions of the case, has been held to have been properly overruled in the court's discretion, where this objection was sufficiently met and explained. Brinkins v. State (1922) 29 Ga. App. 189, 114 S. E. 721 (nature of crime not disclosed).

In State v. McReady (1923) 154 Minn. 366, 191 N. W. 816 (indecent liberties with child), a sheriff's remark, in reply to a juryman's question, that the jury might be kept out a week in case no agreement was reached, was not considered to have been of sufficient consequence to affect the result.

And in State v. Broughton (1923) 154 Minn. 390, 192 N. W. 118 (carnal knowledge of female under eighteen), a defendant was refused a new trial that was claimed by reason of the bailiff having opened the jury-room door on a Sunday morning, when the trial judge had come into the courthouse and having told the jurors that the judge might go home and they might have to stay in their room all day, the judge having been satisfied that no rights of the accused were prejudiced.

In Williams v. State (1923) Ind. 139 N. E. 657 (burglary), a new

trial was denied where a sheriff was alleged to have conversed with members of the jury, upon the ground that misconduct was not proved and it was not shown that the verdict was affected.

See also Allen v. State (1923) 155 Ga. 332, 116 S. E. 534 (rape), where jurors were not allowed to impeach their verdict by testifying as to a bailiff's remark to them that they were not coming out until a verdict was reached.

V. Communications with juror not serving in the case.

No later decisions herein. For earlier cases, see annotation in 22 A.L.R. 267.

VI. Communications between jurors and

witnesses.

(Supplementing annotation in 22 A.L.R. 268.)

In People v. Magee (1922) 60 Cal. App. 459, 213 Pac. 513 (assault), a conversation between a juror and a witness relating only to trivial matters, and having no relation to the case on trial, was considered to be imprudent, but not ground for a new trial.

In State v. Kennedy (1923) 195 Iowa, 1059, 191 N. W. 877 (burglary), a motion for a new trial on the ground that a juror had talked with a witness was held to have been properly overruled, where what they had talked about was not shown, and the judge had cautioned the jurors against talking to any persons about the case on trial.

A conversation during a recess, between a jurywoman and a witness on matters of general interest, without mention of the case that was being tried, and which the jurywoman stated that she forgot upon retiring to the jury room, has been held to be not ground for a new trial, but merely a case where a juror, innocent of all wrongdoing, was entrapped into a seeming impropriety. State v. Guy (1922) 121 Wash. 534, 209 Pac. 673 (grand larceny).

In People v. Rodgers (1923) 120 Misc. 166, 197 N. Y. Supp. 805, 40 N. Y. Crim. Rep. 256 (grand larceny), the

« ÀÌÀü°è¼Ó »